Ms. Marcia-Ann Pogar
For the Respondent
Peter F. Dow, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge

DECISION

Statement of the Case

This proceeding, under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the United States Code,
5 U.S.C. § 7101, etseq.(1), and the Rules
and Regulations issued thereunder, 5 C.F.R. § 2423.1 etseq., concerns whether
Respondent violated §§ 16(a)(5) and (1) of the Statute by
unilaterally implementing a new procedure for the assignment of
overtime.

This case was initiated by a charge filed on March 10, 1992,
(G.C. Exh. 1-A). The Complaint and Notice of Hearing issued on July
24, 1992, and set the hearing for October 23, 1992, at a place to
be determined in Portsmouth, New Hampshire (G.C. Exh. 1-C); and by
Order dated September 17, 1992, the place of hearing was fixed
(G.C. Exh. 1-D), pursuant to which a hearing was duly held on
October 23, 1992, in Portsmouth, New Hampshire, before the
undersigned. All parties were represented at the hearing, were
afforded full opportunity to be heard, to introduce evidence
bearing on the issues involved, and were afforded the opportunity
to present oral argument which each party waived. At the conclusion
of the hearing, November 23, 1992, was fixed as the date for
mailing post-hearing briefs which time was subsequently extended,
initially on motion of Respondent, to which the other parties did
not object, for good cause shown, to January 22, 1993, and
thereafter, on motion of General Counsel, to which the other
parties did not object, for good cause shown, to February 10, 1993.
Respondent and General Counsel each timely mailed a brief, received
on, or before, February 12, 1993, which have been carefully
considered. Upon the basis of the entire record(2), including my observation of the witnesses
and their demeanor, I make the following findings and
conclusions:

FINDINGS

1. The Portsmouth Federal Employees Metal Trades Council
(hereinafter, "Union") is the certified exclusive representa-tive
of a unit of employees appropriate for collective bargaining at the
Portsmouth Naval Shipyard, Portsmouth, New Hampshire (hereinafter,
"Respondent").

2. Shop 99 is a service support shop both for submarines
undergoing overhaul and for shipyard facilities, including
buildings and barges. Shop 99 provides electrical, pipefitting and
gas monitoring services. A submarine undergoing overhaul is
referred to as a "project" and in December 1991, there were four
submarines in the process of overhaul: SSN 686; SSN 708; SSN 714;
and NR-1 (a research boat). Each project, i.e., submarine, had a Project Manager and Respondent's
production shops, not Shop 99, provided project teams comprised of
mechanics from various trades to accomplish the overhaul. The
function of Shop 99 was to support the project crews. Thus, Shop 99
would install temporary services on each project, e.g., electricity, water, maintain such services,
repair or replace equipment used by project trades, etc.

3. There are about 70 to 75 electricians in Shop 99 and
about the same number of pipefitters. Some electricians and
pipefitters are assigned to support the production crews on each
project, but the bulk of Shop 99's employees work in the shop
repairing equipment (Tr. 12-14). Employees working in the shop have
limited opportunity for overtime work. On the other hand, there are
frequent overtime work opportunities for Shop 99's project support
pipefitters and electricians; indeed, for the year beginning
December 1, 1990, through November 30, 1991, Shop 99 project
support employees were offered weekend overtime to support
particular projects 70% of the weekends (Tr. 16-17) or on about 36
of the 52 weekends.

4. For at least eight years prior to December 1991 (Tr.
16), the procedure for selecting Shop 99 employees for weekend
project support overtime work had been to offer the overtime to the
employees assigned to that project, i.e. if
the overtime were on project 708, then the overtime would be
offered to the employees assigned to support project 708 (Tr. 15,
16, 18, 36, 50-51, 64). If the employees assigned to a particular
project all turned down the overtime, then Respondent went to the
list of all Shop 99 employees (Tr. 15, 51).

5. Prior to December 1991, each project [boat] with
weekend project work would request one pipefitter and one
electrician just in case something went wrong. I shall call these
contingent employees "what if" employees. In addition to the "what
if" employees, a project might require Shop 99 employees for direct
support (Tr. 49, 51) such as installation of temporary service for
a boat newly arrived for overhaul, or for the planned movement of
equipment, pipes or lines for sandblasters to do their work. Thus,
apart from direct support employees, before December 1991, each
project [boat] would have had one "what if" pipefitter and one
"what if" electrician for eight hours each day that a production
crew worked on the weekend, or, as more fully set forth in
Respondent's Brief, at page 3, with four projects [boats] there
would have been eight mechanics (four pipefitters and four
electricians) on Saturday, working 64 hours, and eight mechanics on
Sunday, working 64 hours, or a total of 128 hours for "what if"
weekend overtime.

6. On, or about, December 4, 1991, Shop 99
Superintendent, John F. Stinson (Tr. 47) (at the time of the
hearing, Acting Group Superintendent (Tr. 47), told Mr. Paul
Richard O'Connor, Chief Steward of the Union and President and
Business Manager of Local 2071, IBEW (Tr. 11), that he had
implemented a new "Waterfront Support" policy for weekend work and
that thenceforth "what if" weekend overtime would no longer be
offered first to the employees assigned to support a particular
project but would be offered only on the basis of Shop 99's
overtime list.

The new "Waterfront Support" policy meant two things: First,
Project Managers could no longer request a "what if" pipefitter and
a "what if" electrician for each day; rather, each project would be
limited to two hours "what if" time for each mechanic (Tr.
49).(3)Of course, the Project
Manager could also request as much direct support as needed (Tr.
51). Thus, absent direct support requirements, under the
"Waterfront Support" policy, each project would have one "what if"
pipe-fitter for two hours and one "what if" electrician for two
hours each day, or, as more fully set forth in Respondent's Brief,
at page 4, with four projects, there would be a total of one
pipefitter and one electrician working a total of 16 hours Saturday
and 16 hours Sunday for a total both days of 32 hours "what if"
time, whereas, under the practice before December 1991, there would
have been a total of 128 hours "what if" time for Saturday and
Sunday.

Second, as noted above, Respondent would thereafter use the
entire Shop 99 overtime list when offering weekend "when
if"(4) overtime to, ". . . make it
more fair and equitable for all the employees." (Tr. 20). Because
the general Shop 99 employees rarely worked any overtime, they had
fewer total hours of overtime and the new "Waterfront Support"
policy resulted in their receiving preference over the project
support employees who had worked directly on the projects during
the preceding week (Tr. 27-28, 36-37, 52, 61, 62-63).

7. The acknowledged procedure for notifying the Union of
proposed changes in the working conditions of bargaining unit
employees, which the parties had followed for at least 12 years
prior to December 1991, requires that Respondent provide the Union
President, 1st Vice-President, or Recording Secretary with advance
written notice of the proposed change and the date it proposed to
implement the change. Respondent recognizes that notice of changes
of conditions of employment must be provided in advance to the
Union qua Union; that only the Union's
officers can make binding agreements; and that Chief Stewards and
Stewards have no authority to make agreements on behalf of the
Union. Nevertheless, Respondent did not notify the Union in advance
that it had:

(a) ended its long established and well recognized practice
of first offering weekend project

support overtime to Shop 99 employees assigned to support
projects and who had worked

if", overtime would be offered only on the basis of the
entire Shop 99 overtime list, and assign

it "from the least amount of overtime to most." (Tr.
50-51).

Conclusions

There is no dispute as to the facts. The record shows, and
Respondent admits, that for many years before December 1991, all
weekend project support overtime was offered first to Shop 99
employees assigned to support projects and who had worked on the
particular projects during the proceeding week; and that on, or
about, December 4, 1991, it changed this procedure and implemented
a new procedure whereby weekend "what if" overtime would be offered
only on the basis of the entire Shop 99 overtime list, assigning it
in the inverse order of the amount of overtime worked. No notice of
the proposed change was given to the Union prior to its
implementation and Respondent states, "It is no secret that the
Respondent did not negotiate with the Charging Party on the
creation of the Waterfront Support procedure. . . ." (Respondent's
Brief, p. 5). Respondent's justification for its refusal to
negotiate is wholly without merit; indeed, totally ignores the only
issue raised by the Complaint and "floats a red hearing" to which
it addresses its comments. To be sure, Respondent's prior practice
of having one "what if" electrician and one "what if" pipefitter
for each project on the weekend when any project work was being
performed plainly appeared to have been, ". . . very ineffective
and costly" (Tr. 48); but Respondent's right to reduce such "what
if" time is not in issue. As stated, the issue is Respondent's
unilateral change of the procedure for assigning whatever weekend
"what if" project support overtime Respondent elects to have. The
assignment of overtime has nothing to do with Respondent's
determination of its staffing needs. It is said that the road to
Hades is paved with good intentions. Respondent may have viewed the
long established right of the project support employees to the
first refusal of weekend overtime as inequitable; nevertheless, it
was a right accorded them over a period of many years, was a
condition of their employment, and, good intentions aside,
Respondent was not free to change this condition of employment of
Shop 99 project support employees without notice to the Union and
an opportunity for the Union to bargain about the proposed change.
U.S. Department of the Air Force, 56th Combat
Support Group (TAC), MacDill Air Force Base, Florida, 41
FLRA 850, 853 (1991); U.S. Department of Labor,
Washington, D.C., 38 FLRA 899, 910 (1990).

Respondent having changed a condition of employment in
violation of its bargaining obligation, ordinarily, General
Counsel's request for a statusquoante order would be
granted; but here the record shows that sometime after the charge
was filed, March 10, 1992, Respondent abandoned the new procedure
for the assignment of weekend project support overtime and reverted
to its prior procedure (Tr. 25, 52, 62-63). Accordingly, because
the change of conditions of employment has been eliminated and
Respondent has already returned to the prior procedure, a
statusquoante order is not necessary and will not be
ordered.

Shop 99 project support employees, i.e., those Shop 99 employees assigned to project
support and who worked on the projects the preceding week, who lost
weekend overtime as the result of Respondent's unlawful unilateral
implementation, on, or about, December 4, 1991, of a new procedure
for assigning overtime, are entitled to be made whole for all
overtime lost as the result of Respondent's unlawful action.
United States Customs Service, Southwest Region,
El Paso, Texas, 44 FLRA 1128, 1130 (1992). Respondent
asserted, and I have found, that it continued to give project
support employees first refusal for any direct support weekend work
(see, n.4, supra); and that it was only the
contingent, "what if", work that was assigned on the basis of the
entire Shop 99 overtime list. In ordering back pay, all weekend support overtime is intentionally ordered.
If there were direct support overtime and if it were offered first
to the project support employees, then they will not have suffered
any loss to that extent. On the other hand, if weekend support
overtime, whether contingent or direct (specifically prescheduled),
occurred and the project support employees suffered any loss
because of Respondent's unlawful action they are entitled to be
made whole.

Having found that Respondent violated §§ 16(a)(5) and (1) of
the Statute, it is recommended that the Authority adopt the
following:

ORDER

Pursuant to § 18(a)(7) of the Statute, 5 U.S.C. §
7118(a)(7), and § 2423.29 of the Regulations, 5 C.F.R. § 2423.29,
it is hereby ordered that the Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, shall:

1. Cease and desist from:

(a) Unilaterally changing conditions of employment
by implementing a new procedure for assigning weekend project
support overtime and no longer assigning overtime to employees
based on the projects worked by